"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion....[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." Justice Hugo Black, Bridges v. California (1951)

Monday, January 20, 2014

Alabama Attorney-Blogger Remains in Jail Indefinitely Due to Judge's Order Imposing Prior Restraint on Speech

Earlier this month, the New York Times reported on remarkable story
about a blogger-attorney who has been in jail for three months based on a
judge's contempt order:

Attorney-Blogger Roger Shuler

For over six years, Roger Shuler has hounded figures of the state legal and political establishment on his blog, Legal Schnauzer,
a hothouse of furious but often fuzzily sourced allegations of deep
corruption and wide-ranging conspiracy. Some of these allegations he has
tested in court, having sued his neighbor, his neighbor’s lawyer, his
former employer, the Police Department, the Sheriff’s Department, the
Alabama State Bar and two county circuit judges, among others. Mostly,
he has lost.

...

A
former sports reporter and a former employee in a university’s
publications department, Mr. Shuler, 57, was arrested in late October on
a contempt charge in connection with a defamation lawsuit filed by the
son of a former governor. The circumstances surrounding that arrest,
including a judge’s order that many legal experts described as
unconstitutional and behavior by Mr. Shuler that some of the same
experts described as self-defeating posturing, have made for an
exceptionally messy test of constitutional law.

...

His
allegations are frequently salacious, including a recent assertion that
a federal judge had appeared in a gay pornographic magazine and a
theory that several suicides were actually a string of politically
motivated murders. Starting in January 2013, Mr. Shuler, citing
unidentified sources, began writing that Robert Riley Jr., the son of
the former governor, had impregnated a lobbyist named Liberty Duke and
secretly paid for an abortion. Both denied it, and Ms. Duke swore in an
affidavit that they had never even been alone in the same room.

In
July, Mr. Riley and Ms. Duke sought an injunction in state court
against such posts, citing Mr. Shuler and his wife, Carol, in defamation
suits. A judge issued a temporary restraining order in September
barring the Shulers from publishing “any defamatory statement” about Mr.
Riley and Ms. Duke and demanding that the offending posts be
immediately removed.

When
the Shulers missed a hearing, the judge replaced the restraining order
with a similarly worded preliminary injunction. Shuler continued to
blog and eventually he was arrested for contempt and resisting arrest.
He was taken to the county lockup.

The Times reports what happened next:

On Nov. 14, the judge held a hearing, and Mr. Shuler, who was
representing himself, took the stand, insisting that the court had no
jurisdiction over him and calling the court a joke. The judge decided
that the hearing had “served as a trial on the merits” and made his
final ruling: Mr. Shuler was forbidden to publish anything about Mr.
Riley or Ms. Duke involving an affair, an abortion or payoffs; was to
pay them nearly $34,000 for legal fees; and was to remove the offending
posts or remain in jail.

Today, Shuler sits in jail indefinitely. He is on the Committee to Protect Journalists
list of imprisoned journalists. As the Times article notes: "[t]here,
in the company of jailed reporters in China, Iran and Egypt, is
Mr. Shuler, the only person on the list in the Western Hemisphere."

It
is easy to write this and downplay the judicial culpability in what has
happened to Mr. Shuler. Even a first year law student knows the
Constitution does not allow prior restraint on speech. Yet that is
exactly what the judge ordered on several occasions. Undoubtedly he
knew his ruling violated the Constitution but he also undoubtedly knew
that Shuler's remedy for such an unlawful order was probably years down
the road long after the issues in the case would be mooted by the
passage of time. That is unacceptable conduct by the judge.

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About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.